The day before the Commission
put out its proposal to re-introduce a EU-PNR (Passenger Name
Record) [1] scheme on 2 February 2011 (Commission
proposal) the UK was already working behind the scenes
to extend its scope from monitoring flights in and out of the
EU to cover all travel between EU countries as well.[2] And very
quickly intervened on 10 February in the Council of the European
Union's discussions: UK
proposals

The UK proposal

The UK government is proposing
that Member States are allowed the additional option of: 1) collecting
PNR data on internal EU flights (intra-EU) and 2) each Member
State exercising this option could decide "the particular
intra-EU routes on which it wishes to collect PNR".[3] So,
for example, the UK could require PNR data on flights to and
from Greece, Italy, Bulgaria and France or all EU states.

The "Outcomes"(Minutes)
of the Council's Article 36 Committee (CATS) on 10-11 February
2011 say that the UK proposal was discussed, "including
intra-EU flights" and that: "This proposal received
support from a significant number of Member States".(EU
doc no: 6847/11)

The UK is also proposing
that at the end of the transitional six year period to remove
"the requirement for Member States to collect data on
every international flight." It proposes under Recital
18 that each Member State would decide, at their discretion,
which international flights to monitor. This would be contrary
to the concept of "harmonisation" and could lead to
security "gaps".

Another UK amendment,
amended Recital 28, would allow Member States to collect PNR
for "purposes other than those specified in Directive"
or "from transportation providers other than those
specified in the Directive". In other words, the scope
could extend to all crimes however minor and require PNR data
to be transferred not just from flights but from boats and trains
too.

Where Member States collect
PNR data on international and intra-EU flights and sea and rail
travel they could exchange this data with other Member States
(amendment Article 1, para 1).

Under the UK Article 17
a review of the necessity of all Member States including intra-EU
flights would be carried out within two years - which would remove
the optional aspect.

The UK government's rationale,
while claiming to "roll back" the authoritarian state
at home, is that:

"Responsible governments
must provide security for their citizens and protect their privacy.
We do not agree with those who say that we have to choose between
being safe and being free. This is a false choice  both
are possible."

As noted below the UK
has the most comprehensive PNR system covering flights, sea and
rail for international, intra-EU and domestic travel which it
seeks to encourage across the EU. The "freedom of movement"
is one of the four founding principles of the EU and this presumes
the right to travel without being placed under surveillance except
for very limited and exceptional purposes. The UK proposals go
it quite the opposite direction including gathering personal
data for "purposes other than those specified in Directive"
or "from transportation providers other than those
specified in the Directive".

The Commission proposal

An EU-PNR scheme was first
proposed in 2003: Spanish proposal. In 2007 the Commission
put forward a proposal for an EU-PNR scheme covering flights
in and out of the EU. In November 2008 the European Parliament
refused to vote on the the proposal and it was effectively dropped.
But the Commission then put out a consultation paper in 2009
which raised the possibility, for the first time, of extending
PNR data to - intra-EU and domestic travel by land, sea and air:
see: Article 29 Working
Party: Impact Assessment questionnaire The scheme was
revived by being included in the Stockholm Programme.

The new Commission proposal
for a Directive on EU-PNR opens by citing the Sourcebook on Crime
and Criminal Justice Statistics to the effect that that there
were "approximately 14,000 criminal offences per 100,000
population in EU Member States in 2007". However, both
Impact Assessment and its Summary, using the same source say:
"there were 143,948 criminal offences per 100,000 population."
The former would seem to be correct unless everyone in the EU
commits 1.43 crimes a year. There is similar confusion throughout
the three documents over the terminology used - the proposal
specifically concerns terrorist offences and serious crime yet
the texts lapse into simply referring to "crime".

The Commission is proposing
that the collection of PNR data for flights in and out of the
EU by Member States should be "harmonised". The usual
reason given for "harmonising" EU laws is that a significant
number (ie: 8-12) of Member States are developing an initiative
independently. In this instance only three Member States have
adopted national legislation - UK, France and Denmark:

UK: Scope: terrorism,
immigration and all crimes. Travel: Flights in and out of EU,
intra-EU (between Member States) and domestic flights. PNR also
collected from sea and rail carriers where this data exists.

France: Scope: limited
to terrorism and immigration. Travel: Flights in and out of EU,
intra-EU (between Member States) and domestic flights. PNR also
collected from sea and rail carriers where this data exists.

Denmark: Scope: terrorism
and "crimes against the state". Travel: Air travel
where data is gathered by carriers. (Source: Impact Assessment).

The rationale for introducing
EU-PNR is not "harmonisation" but rather that it is
in the Stockholm Programme, and it is in the Stockholm Programme
partly because of the row of the EU-USA scheme to which the solution
is perceived to be that the EU collects its own data for external
flights and partly because the surveillance of movement is a
key plank in the EU's security agenda.

The Commission's preferred
Option is limited to air travel in and out of the EU for the
purpose of terrorism and serious crime. But the Impact Assessment
leaves lots of options on the table:

- "It should be
noted that this preferred] option it is not believed to present
the ultimate solution to the problem but, at the current stage,
it is the most desirable solution."[3] [emphasis added]

- the option to extend
the scope from terrorism and serious crime to include "other
purposes" is considered to be "disproportionate
at this stage" [4]

- the option to extend
surveillance to cover travel by sea and rail: "could
be considered in the future, once we will have learned
from the experiences with PNR collection from air travel."
[5] [emphasis added]

- the measure is to be
reviewed within four years after its entry into force but the
Commission is to consider the possibility of "extending
the measure to internal EU flights within two years from its
entry to force".[6]

Respect for fundamental
rights

The Impact Assessment
recognises that the proposal will interfere with fundamental
rights (Article 8 of the ECHR and Articles 7, 8 and 52 of the
Charter of Fundamental Rights). However, interferences are permitted:

""in the
interest of national security, public safety or the economic
well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others". "in accordance
with the law" and "necessary in a democratic society".
As the proposed actions would be for the purpose of combating
terrorism and other serious crime, contained in a legislative
acts they would clearly comply with such requirements provided
they are "necessary in a democratic society" and comply
with the principle of proportionality."[p19]

This logic is self-justifying
where measures are necessary for the "purpose of combating
terrorism and other serious crime" and are contained
in legislative acts meaning they are necessary in a democratic
society". Do this mean that any measure however
draconian to combat terrorism and serious crime and contained
in a legislative act is legitimate in a democratic society?[7]
And would it be legitimate if, in a few years time, the current
PNR proposals were extended to cover for the "purpose
of combating terrorism and other serious crime": i)
all travel by land, sea and air; ii) into and out of the EU,
between EU states (intra-EU) and all domestic travel; and iii)
all travel by any means was subject to an Electronic System for
Travel Authorisation (ESTA) system? [8]

Tony Bunyan, Statewatch
Director, comments:

"The Commission's
EU-PNR proposal covers flights in and out of the EU but its Impact
Assessment opens the door to its scope being extended to flights
between EU Member States and domestic flights plus sea and rail
travel as well. The UK quickly exploited this and already a majority
of EU Member States back the immediate extension of the proposal
to internal EU flights.

This is a slippery
slope. It is only a matter of time before the scheme is extended
to cover every means of travel with the long-term prospect of
an EU travel authorisation system to back it up - all travel
would be surveilled and authorised by the state."

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